PEOPLE v. Bruce Edward Riley, Real Party in Interest.

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Court of Appeal, Fifth District, California.

The PEOPLE, Petitioner, v. The SUPERIOR COURT OF FRESNO COUNTY, Respondent; Bruce Edward Riley, Real Party in Interest.

No. F034275.

Decided: May 11, 2000

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Robert R. Anderson, Assistant Attorney General, Louis M. Vasquez and Robert P. Whitlock, Deputy Attorneys General, for Petitioner. No appearance for respondent. Charles P. Dreiling, Public Defender, and Garrick Byers, Deputy Public Defender for Real Party in Interest.

O P I N I O N

In this writ proceeding, the People challenge the trial court's order dismissing a petition to extend the civil commitment of real party in interest, Bruce Edward Riley, under the Sexually Violent Predators Act (SVPA ).  (Welf. & Inst.Code, § 6600 et seq.) 1  The SVPA establishes a procedure for identifying the extremely dangerous sexual predators who are likely to engage in acts of sexual violence upon release from prison, and then committing those persons for treatment.   The issue presented is whether a petition to extend the commitment of a person who has already been adjudged a “sexually violent predator” (SVP) is invalid unless accompanied by two psychological evaluations as required for an initial SVP determination.

The trial court held that the People did not comply with the SVPA when only one current professional evaluation was presented with the petition to extend Riley's commitment.   The court further concluded that such noncompliance was fatal to the continuing commitment proceedings despite the later submission of additional evaluations.   The SVPA is unclear on the procedure to be followed when an extended commitment is sought.   However, based on a close reading of the SVPA, it must be concluded that the trial court's interpretation was incorrect.   Thus, the writ petition will be granted and the trial court directed to vacate its order of dismissal.

PROCEDURAL HISTORY

In September 1996, the People petitioned to have Riley committed for treatment under the SVPA.   The matter was tried to the court.   On March 31, 1997, the court ruled that Riley was an SVP.   Thereafter, Riley was ordered committed to Atascadero State Hospital for two years pursuant to section 6604.   This judgment was affirmed on appeal.  (People v. Riley (July 19, 1999) F028600.)

On February 16, 1999, the People filed a petition to extend Riley's commitment.   The petition was based on an SVP recommitment evaluation prepared by Dale R. Arnold, Ph.D., and a declaration from the deputy district attorney.   Riley's commitment expired on April 1, 1999.   However, Riley remained in custody at Atascadero.

The hearing to determine whether there was probable cause to believe Riley was likely to engage in sexually violent predatory criminal behavior upon release (§ 6602) commenced on October 26, 1999.   Two additional psychological evaluations that had been prepared in September 1999 were submitted to the court at this hearing.   William Knowlton, Ph.D., concluded that Riley did not meet the criteria as an SVP and recommended the commitment not be extended.   However, Amy Phenix, Ph.D., concluded otherwise.   Thus, two psychologists, Dr. Arnold and Dr. Phenix, recommended recommitment and one psychologist, Dr. Knowlton, recommended release.

However, the trial court did not reach the issue of probable cause.   Instead, the court concluded the petition was invalid when filed because it was supported by only one psychological evaluation rather than two as required by section 6601, subdivision (d).2  The court then dismissed the petition and ordered Riley released.   Execution of this judgment was delayed for two days to give the People the opportunity to seek writ relief.

This court stayed the trial court's order and issued an order to show cause on the People's writ petition.

DISCUSSION

The SVPA is a recent addition to the various schemes that permit the state to exercise a power of involuntary civil commitment over dangerous mentally disordered individuals.  (Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1142-1143, 81 Cal.Rptr.2d 492, 969 P.2d 584.)   When describing the underlying purpose of this act, the Legislature noted that there exists a “small but extremely dangerous group of sexually violent predators that have diagnosable mental disorders” who can be identified while incarcerated.  (Stats.1995, ch. 763, § 1.)  “These persons are not safe to be at large and if released represent a danger to the health and safety of others in that they are likely to engage in acts of sexual violence.”  (Ibid.)  Thus, the Legislature intended that these individuals, if found to be likely to commit acts of sexually violent criminal behavior beyond a reasonable doubt, “be confined and treated until such time that it can be determined that they no longer present a threat to society.”  (Ibid.)

The requirements for classification as an SVP are set forth in section 6600, subdivision (a).   First, an SVP must have been convicted of specified sexually violent offenses against two or more victims for which he or she received a determinate sentence.   Second, the SVP must suffer from a diagnosed mental disorder that makes it likely he or she will engage in sexually violent criminal behavior.

 The process for determining whether a convicted sex offender meets the SVP criteria takes place in several stages, both administrative and judicial.   (Hubbart v. Superior Court, supra, 19 Cal.4th at p. 1145, 81 Cal.Rptr.2d 492, 969 P.2d 584.)   Section 6601 outlines the administrative component of this procedure.

First, if the Director of the Department of Corrections determines that a prisoner may be an SVP, the director must refer the prisoner for an evaluation. (§ 6601, subd. (a).)  This initial screening is conducted by the Department of Corrections and the Board of Prison Terms “in accordance with a structured screening instrument developed and updated by the State Department of Mental Health in consultation with the Department of Corrections.” (§ 6601, subd. (b).)  If this screening indicates the person is likely to be an SVP, the Department of Corrections must refer this person to the State Department of Mental Health for a full evaluation.

At least two practicing psychiatrists or psychologists must conduct this “full evaluation” in accordance with a standardized assessment protocol. (§ 6601, subds.(c) and (d).)   Two evaluators must agree that the inmate “has a diagnosed mental disorder so that he or she is likely to engage in acts of sexual violence without appropriate treatment and custody” before the proceedings can go forward. (§ 6601, subd. (d);  Hubbart v. Superior Court, supra, 19 Cal.4th at p. 1146, 81 Cal.Rptr.2d 492, 969 P.2d 584.)   If this stage is reached, the State Department of Mental Health transmits a request for a commitment petition under the SVPA, along with copies of the evaluations and other supporting documents, to the county in which the prisoner was last convicted. (§ 6601, subds. (d), (h) and (i).)  “If the county's designated counsel concurs with the recommendation, a petition for commitment shall be filed in the superior court․” (§ 6601, subd. (i).)

The filing of the petition triggers the judicial stage of the proceedings under the SVPA.   First, the superior court must hold a hearing to determine whether there is “probable cause” to believe that the person named in the petition is “likely to engage in sexually violent predatory criminal behavior” upon release. (§ 6602.)   The alleged predator is entitled to the assistance of counsel at this stage.   If the judge finds probable cause, a trial is ordered to determine whether the person is an SVP under section 6600.   Otherwise, the petition is dismissed. (§ 6602.)

At trial, the alleged predator is afforded a number of procedural safeguards.   He or she is entitled to trial by a jury, the assistance of counsel, experts to perform an examination on his or her behalf, and access to relevant medical and psychological reports.   The standard of proof is beyond a reasonable doubt and the verdict must be unanimous. (§§ 6603 and 6604.)

If the state fails to carry its burden of proof, the person is released from prison when his or her term expires. (§ 6604.)   However, if the SVP determination is made, “the person shall be committed for two years to the custody of the State Department of Mental Health for appropriate treatment and confinement in a secure facility․, and the person shall not be kept in actual custody longer than two years unless a subsequent extended commitment is obtained from the court incident to the filing of a new petition for commitment under this article or unless the term of commitment changes pursuant to subdivision (e) of Section 6605.” (§ 6604.)

Once an SVP is committed, the act provides various means to ensure that the commitment does not continue if the SVP's condition materially improves.   To this end, annual mental examinations are required.   Further, the SVP may request appointment of an expert to perform the examination. (§ 6605, subd. (a).)

The committed person must also be provided with an annual written notice of his or her right to petition the court for conditional release.   This notice must contain a waiver of rights.   If the committed person does not execute this waiver, the court must set a “show cause hearing.”   The purpose of this hearing is to determine whether there is “probable cause” to believe that the person's diagnosed mental disorder has “so changed that he or she is not a danger to the health and safety of others ․ if discharged.” (§ 6605, subds. (b) and (c).)  If the court so finds, the SVP is entitled to a full hearing with the same basic rights afforded at the initial commitment proceeding. (§ 6605 subd. (d).)

At this full hearing, the state must prove beyond a reasonable doubt that the “committed person's diagnosed mental disorder remains such that he or she is a danger to the health and safety of others and is likely to engage in sexually violent criminal behavior if discharged.” (§ 6605, subd. (d).)  If the state prevails, the SVP's term of commitment runs for two years from the date of the ruling.   However, if the verdict is in favor of the SVP, he or she is entitled to unconditional release and discharge. (§ 6605, subd. (e).)

In Hubbart v. Superior Court, supra, the California Supreme Court concluded that, on its face, the SVPA does not violate a defendant's constitutional rights to due process and equal protection.  (19 Cal.4th at p. 1179, 81 Cal.Rptr.2d 492, 969 P.2d 584.)   Although the SVPA affects a substantial private liberty interest, it provides numerous checks against the risk of erroneous deprivation of this liberty interest.  (In re Parker (1998) 60 Cal.App.4th 1453, 1463, 71 Cal.Rptr.2d 167.)   It is designed to ensure that the committed person does not “ ‘remain confined any longer than he suffers from a mental abnormality rendering him unable to control his dangerousness.’ ”  (Hubbart v. Superior Court, supra, 19 Cal.4th at p. 1177, 81 Cal.Rptr.2d 492, 969 P.2d 584.)   Further, under the SVPA due process is measured by the rights accorded civil litigants.  (People v. Superior Court (Howard) (1999) 70 Cal.App.4th 136, 154, 82 Cal.Rptr.2d 481.)

Here, Riley was adjudged an SVP in March 1997.   There is no indication in the record that Riley ever petitioned the court for conditional release under section 6605, by either filing a petition or failing to execute the conditional release waiver form.   Therefore, in order to extend Riley's commitment, the People were relegated to filing a “new petition for commitment.” (§ 6604.)

As noted above, the People filed the “new petition for commitment” based on one evaluation prepared by Dr. Arnold.   Dr. Arnold concluded that Riley's risk factors for reoffense remained essentially unchanged from the time of his initial commitment.   Dr. Arnold relied, in part, on the two precommitment SVP evaluations prepared in 1996, the annual evaluation prepared in 1998, and an interview with Riley's current treatment team.

However, the trial court refused to review the petition and determine whether there was probable cause to believe Riley was likely to engage in sexually violent predatory criminal behavior upon his release.   Rather, the court held the petition was fatally defective under section 6601, subdivision (d), because the People did not submit two professional evaluations when the petition was filed.   Thus, this court must decide whether the reference to “a new petition for commitment under this article” in section 6604 requires strict adherence to the entire procedure outlined in section 6601.   The SVPA itself provides no specific guidance on this issue.   In fact, the term “a new petition for commitment” only appears in section 6604.

As discussed above, section 6601 sets forth the administrative procedures that must be followed by the Department of Corrections and the State Department of Mental Health with respect to screening and evaluating those individuals in custody who may be sexually violent predators.   Subdivisions (a) and (b) pertain to the screening of an “individual ․ who is either serving a determinate prison sentence or whose parole has been revoked” by the Department of Corrections and the Board of Prison Terms.   If, as a result of this screening, it is determined that “the person” is likely to be an SVP, the Department of Corrections must refer “the person” to the State Department of Mental of Health for a full evaluation.

Subdivisions (c) and (d) outline the steps that must be taken by the State Department of Mental Health to evaluate “the person” following referral by the Department of Corrections.   This is the time when subdivision (d) comes into play, i.e., two psychiatrists or psychologists must evaluate “the person” before the Director of Mental Health can proceed with the next step in the SVP determination process.

 To determine whether the “new petition for commitment” filed in this case met the minimum requirements necessary to initiate a probable cause hearing, the various subdivisions contained in section 6601 must be considered in both the proper order and context.

 With respect to context, it is important to bear in mind that section 6601 was drafted from the perspective of evaluating a person who is about to be released from prison custody in order to determine, for the first time, whether this person may be an SVP.   The SVP label is not one to be imparted lightly.   An SVP designation follows that individual beyond the commitment term.   For example, before a person committed as an SVP is released for community outpatient treatment, written notice must be provided to both law enforcement and the district attorney in the communities where the SVP may be released and where the SVP last maintained his or her legal residence. (§ 6609.1.)   Thus, such proceedings should not be commenced against someone who may be an SVP without redundant documentation.   However, in a recommitment situation, the SVP label is already in place.   The focus has shifted from whether the individual has a diagnosed mental disorder that makes that person a danger to the health and safety of others to whether that previously adjudged mental disorder remains.

To properly evaluate section 6601 in this recommitment context, it must be considered in the order in which it was written.   The progression of the statute is critical.   In fact, Riley acknowledges that not all of section 6601 can be followed for a recommitment.   Riley explains that subdivisions (a) and (b) “can only apply to the initial SVP commitment, because, by their terms, they only apply when the person is still in prison custody.”   However, subdivisions (c) and (d), by their terms, are dependent on (a) and (b).  Subdivision (c) refers to the very same person identified by subdivisions (a) and (b), i.e., the person in custody under the jurisdiction of the Department of Corrections who may be a sexually violent predator.   Subdivision (d) then applies to the person specified in subdivisions (c), (b) and (a).   The subsequent subdivisions follow this pattern of referring back to the preceding subdivisions through subdivision (g).   Thus, subdivisions (a) through (g) literally pertain only to the prison inmate who may be a sexually violent predator.

In the case of a recommitment, the subject of the petition is someone who has previously been found to meet the SVP criteria beyond a reasonable doubt.   When such a person is involved, no logical purpose is served by repeating all of the administrative steps in the initial SVP evaluation process.   Rather, in the case of an adjudged SVP, rigidly duplicating this procedure appears superfluous.   It must be remembered that the role of the State Department of Mental Health in screening and evaluating prison inmates under section 6601 is merely an administrative precursor to a thorough judicial process.   The filing of the petition is only the first of many steps in this judicial stage.   It serves to initiate the probable cause hearing, a proceeding that has been described as a “type of ‘preliminary hearing’ for the probable cause determination.”  (In re Parker, supra, 60 Cal.App.4th at p. 1462, fn. 10, 71 Cal.Rptr.2d 167.)

Thus, the fact that two evaluations are not submitted with a petition for recommitment should not, in and of itself, invalidate that petition.   The State Department of Mental Health cannot properly request a new petition for commitment unless it determines that the person is still an SVP. (§ 6601, subd. (h).)  Such a determination would require current information on the committed person's mental condition.   Otherwise, the request would be unsupported and thus, unable to sustain a finding of probable cause.   After the petition is filed, the SVP proceeding does not continue unless a superior court judge reviews the petition and independently determines that the person is likely to engage in “sexually violent predatory criminal behavior upon his or her release.” (§ 6602, subd. (a).)

 The stated objective of the SVPA is to identify individuals who have certain diagnosed mental disorders that make them likely to engage in acts of sexual violence and to confine them for treatment only as long as the disorders persist.  (In re Parker, supra, 60 Cal.App.4th at p. 1466, 71 Cal.Rptr.2d 167.)   Once an individual has been adjudged an SVP the focus shifts from identifying that person as a potential SVP to reviewing his commitment to determine whether his or her condition has changed.

Here, the State Department of Mental Health determined that Riley was an SVP in 1997.   Dr. Arnold's evaluation concluded that Riley's status had not changed.   As noted above, once SVP status has been obtained, the focus of the mental health evaluation shifts to whether the diagnosed mental disorder remains.   Thus, there was sufficient support for a “new petition for commitment.”

Consequently, the trial court erred when it dismissed the petition on the ground that only one evaluation was submitted when the petition was filed.   Rather, the trial court should have proceeded with a probable cause determination under section 6602.

This conclusion does not put Riley at risk of remaining “ ‘confined any longer than he suffers from a mental abnormality rendering him unable to control his dangerousness.’ ”  (Hubbart v. Superior Court, supra, 19 Cal.4th at p. 1177, 81 Cal.Rptr.2d 492, 969 P.2d 584.)   All of the procedural safeguards contained in sections 6602 through 6604 will apply to the proceedings to extend his commitment.

DISPOSITION

Let a peremptory writ of mandate issue directing the trial court to vacate its order made on October 18, 1999, dismissing the petition in Fresno County Superior Court case No. 442319-0.   The trial court is further directed to proceed with a probable cause hearing pursuant to section 6602.

I write separately to acknowledge concurrence in the result of the lead opinion, however, I respectfully disagree with the conclusion that only one evaluation is required.   Likewise, I respectfully disagree with Justice Thaxter's dissent.

Let me begin by stating my position in terms of the consequences.   At issue here is not whether petitioner, Riley, is a sexually violent predator or whether he has the right to a probable cause determination that he is a sexually violent predator as a prelude to his right to a trial by jury requiring proof that he is a sexually violent predator beyond a reasonable doubt.   At issue here is whether or not a petition filed by the State Department of Mental Health in pursuit of a recommitment of petitioner as a sexually violent predator requires two new evaluations by appropriate psychiatric personnel in order to file the petition for recommitment.

Section 6604 of the Welfare and Institutions Code 1 states in pertinent part:

“The court or jury shall determine whether, beyond a reasonable doubt, the person is a sexually violent predator.   If the court or jury is not satisfied beyond a reasonable doubt that the person is a sexually violent predator, the court shall direct that the person be released at the conclusion of the term for which he or she was initially sentenced, or that the person be unconditionally released at the end of parole, whichever is applicable.   If the court or jury determines that the person is a sexually violent predator, the person shall be committed for two years to the custody of the State Department of Mental Health for appropriate treatment and confinement in a secure facility designated by the Director of Mental Health, and the person shall not be kept in actual custody longer than two years unless a subsequent extended commitment is obtained from the court incident to the filing of a new petition for commitment under this article ․” (Italics added.)

The difficulty with the legislative reference to “new petition for commitment” is that the only legislative provision regarding such procedures is section 6601 which by its terms refers to initial petitions for commitment.  (See § 6601, subds. (a), (b), (c).)   The provision in section 6601 referring to evaluations by two practicing psychiatrists, etc., defines a process undertaken pursuant to section 6601, subdivision (b) which clearly has no application to a recommitment.   Therefore, while the dissent criticizes the lead opinion and this opinion for rewriting the statute, the dissent must necessarily do the same in deleting and overlooking portions of the statute in order to conform to section 6604's referral back to section 6601.

 Which brings me to the actual point of disagreement.   The dissent would require that for the filing of a petition on a recommitment there must be two evaluations and that they must both be current.   The lead opinion would require only one evaluation.   In my view, the statute does require two and that does not appear to be a requirement that can be judicially extracted without significantly changing an integral part of the prescribed process.

The lead opinion provides, “thus, the fact that two evaluations are not submitted with a petition for recommitment should not, in and of itself, invalidate [the] petition.”  (Lead opn. of Levy, J., p. 664.)   It is to this statement that I do not subscribe.   We cannot create out of whole cloth a procedure that has its genesis in statute.   However I believe we can interpret the requirement in a way consistent with the words of the statute and consistent with legislative intent.

The individual herein has been adjudicated a sexually violent predator.   It is not a situation where the individual is being detained past his prison commitment without strong safeguards.   Rather, it is a situation where the individual demonstrates clearly he is still a sexually violent predator a person who by definition is “a person who has been convicted of a sexually violent offense against two or more victims for which he or she received a determinate sentence and who has a diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior.”  (Welf. & Inst.Code, § 6600.)   Therefore, while we must be most observant of the person's statutory and constitutional rights, we must also be most aware of the consequences of release without adequate scrutiny.   This statute was intended to also protect the community.

However, the statute defines the process.   We are not legislators.   We must work with and accept legislation while attempting to interpret it consistent with its intent.   Unfortunately, the statute does say that the process for recommitment is the same as for commitment.   While the process cannot be identical in fact, I cannot ignore that the one portion that refers to two psychiatric evaluations is not affected by the recommitment process.   In other words, the situation existing on recommitment does not require judicially deleting that portion requiring two psychiatric evaluations as not applicable to the recommitment process.   We are not judicial legislators and we cannot mask specific language from a statute by ignoring it.

The lead opinion would say the recommitment process is different so we must reshape portions of the statute to effectuate intent.   I would agree.   The lead opinion would say this person has received the protection of initial scrutiny as a sexually violent predator on first commitment therefore the concerns on recommitment are not precisely the same.   I would agree.   The lead opinion would say this is merely a preliminary action preparatory to filing a petition which sets in motion a host of highly restrictive processes.   I would agree.   The lead opinion would say that therefore even though the statute says two psychiatric evaluations must be utilized to initiate the petition, two are not really necessary because the intent of the Legislature would not be furthered under the circumstances by insistence upon two new evaluations on a recommitment and one will suffice.   I would agree.   The lead opinion would say, therefore, even though the statute says two psychiatric petitions are required, we can ignore or judicially delete that requirement.   I do not agree.

We are not the Legislature.   I do not believe we can judicially delete an express statutory requirement.   I do believe, however, we can accommodate the expressed statutory requirement in a way consistent with the intent of the Legislature and with the words of the Legislature.

In the instant case, the evaluation that took place pursuant to a procedure determined by the Department of Mental Health included in its evaluation the two prior evaluations that originally were used in filing the initial petition.   It also included the subsequent probable cause proceeding and determination beyond a reasonable doubt that petitioner was a sexually violent predator in reaching the conclusion that he was currently a sexually violent predator.   I therefore conclude that the requirement of two evaluations has been accommodated consistent with statutory intent.

I part company with Justice Thaxter's view that using the prior evaluations in conjunction with the new evaluation to constitute the two evaluations “is totally at odds with the spirit of the SVPA and renders the two evaluation requirement meaningless”.  (Dis. opn., Thaxter, J., p. 672.)

First of all, the dissent acknowledges the statute does not say “current” evaluation and infers “currency” from the statutory procedure.   While I do not disagree that the evaluations must be sufficient to conclude the petitioner is currently a sexually violent predator for purposes of filing the petition, I do not agree that a reevaluation that includes prior evaluations and prior determinations is not sufficient to meet the statutory intent that there be a body of opinion that agrees as to petitioner's current status.   While I do not dismiss my colleague's principled statutory analysis, it is clear both of us must read into the statute what passes for “currency.”

As to the “spirit” of the Sexually Violent Predators Act (SVPA), I would point out that two purposes are clearly intended:  (1) To identify and isolate sexually violent predators and (2) to ensure that a process is established that protects the rights of the individual and is not arbitrary in nature.   As the dissent acknowledges, there is no constitutional requirement for two evaluations.   Rather, the requirement is an effort to ensure that there is a respectable body of opinion that exists in order to initiate the filing process.   I submit that my conclusion meets that intent in ensuring “currency” of petitioner's status as well as requiring that such evaluations reflect other opinions.   After all, the substance of this situation, as it must be in every case of recommitment, is that the petitioner was initially evaluated by at least two psychiatrists/psychologists who agreed that he was a sexually violent predator subject to a specified protocol developed by the Department of Mental Health;  the district attorney agreed and initiated the filing;  a judge determined there was probable cause and the status of sexually violent predator must have been found beyond a reasonable doubt subject to a jury trial.   This same person must have a post-commitment examination every year until the term is completed to ensure his status as a sexually violent predator is unchanged. (§ 6605, subd. (a).)

Thus, while I conclude that Justice Thaxter's interpretation cannot be faulted from a literal standpoint, I conclude by the consequence of the literal interpretation that such interpretation is inconsistent with the intent and expectations of the statute.

In evaluating a statute of such enormous consequence as the one herein, we cannot write in a vacuum.   The impact of this decision is enormous.   The statute is designed to isolate the most dangerous form of predator against the most vulnerable form of victim.   To construe the re-filing requirements with respect to a person who has already been determined by numerous professional psychiatric personnel as well as beyond a reasonable doubt to be a sexually violent predator as requiring two entirely new evaluations before the petition can be filed exalts form over substance.   The Legislature intended isolation of these individuals because of the very fact that they are so dangerous.   I submit that my interpretation is consistent with ensuring the intent of the Legislature regarding independent psychiatric evaluation as opposed to simple prosecutorial discretion to initiate the commitment process of a sexually violent predator.

A statute cannot be construed in isolation but rather, must be read “ ‘ “with reference to the entire scheme of law of which it is a part so that the whole may be harmonized and retain effectiveness.” ’ ”  (In re Parker (1998) 60 Cal.App.4th 1453, 1464, 71 Cal.Rptr.2d 167.)   The language of the statute should not be given a literal meaning if doing so would result in absurd consequences that the Legislature did not intend.  “ ‘Thus, “[t]he intent prevails over the letter, and the letter will, if possible, be so read as to conform to the spirit of the act.” ’ ”  (Ibid.)

I am not unaware of the decision by our sister court in Butler v. Superior Court (2000) 78 Cal.App.4th 1171, 93 Cal.Rptr.2d 468 [Mar.2000.] which concluded that two evaluations were required to initiate sexually violent predator recommitment proceedings.   That court did not address the specific issue contained herein as to whether the process of recommitment can construe previous evaluations in conjunction with a new evaluation as accommodating the requirement for two evaluations in order to establish the petitioner's current status.   Further, I note footnote 8 of the aforementioned opinion states:

“We note that if petitioners are ultimately subject to subsequent extended commitments upon the proper filing of new petitions for commitment, such extended commitments would be deemed to begin on the date upon which petitioners' initial commitments terminated. (§ 6604.1, subd. (a) [‘For subsequent extended commitments the term of commitment shall be from the date of the termination of the previous commitment.’].)”  (Butler v. Superior Court, supra, 78 Cal.App.4th at p. 1182, 93 Cal.Rptr.2d 468.)

This footnote was further explanation of the statement in Butler, “[a]s neither petitioner was subject to a ‘full evaluation’ before the instant petitions for commitment were filed, the petitions should have been dismissed.”  (Butler, supra, 78 Cal.App.4th at p. 1182, 93 Cal.Rptr.2d 468.)   We are not called upon to determine whether or not the consequences to the petitioner by virtue of a faulty petition would result in discharge as a sexually violent predator.   However, given the provisions of section 6601, subdivision (a) that require that the petition for commitment be filed prior to the inmate's release, I would note that a significant question is raised as to whether or not a faulty petition is a “petition” filed prior to the release date.   Such a determination must refer back to section 6601 as to what constitutes the release date and whether it includes the end of the original two-year term of commitment.   This again raises the issue of interpretation of section 6601 as it pertains to “recommitments.”

I would let a preemptory writ of mandate issue directing the trial court to vacate its order made on October 18, 1999, dismissing the petition in Fresno County Superior Court case No. 442319-0.   Accordingly, I concur with the lead opinion of Justice Levy and would direct a probable cause hearing to proceed pursuant to section 6602.

I respectfully dissent.

This case presents an issue solely of statutory construction.   In my opinion the rules governing our review compel a finding that the trial court properly dismissed the petition before it.   Accordingly, I would deny the petition for writ of mandate.   In reaching this conclusion I agree with the reasoning of the only two appellate court panels who have previously considered the same issue in published decisions.  (See Butler v. Superior Court (2000) 78 Cal.App.4th 1171, 93 Cal.Rptr.2d 468 and Peters v. Superior Court (2000) 79 Cal.App.4th 845, 94 Cal.Rptr.2d 350.)

Justice Levy's lead opinion (the lead opinion) accurately relates the procedural history of this case and gives an overview of the Sexually Violent Predators Act (SVPA).  (For other discussions summarizing the SVPA, see Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1143-1149, 81 Cal.Rptr.2d 492, 969 P.2d 584;  People v. Hedge (1999) 72 Cal.App.4th 1466, 1469-1472, 86 Cal.Rptr.2d 52;  and In re Parker (1998) 60 Cal.App.4th 1453, 1456-1459, 71 Cal.Rptr.2d 167.)   There is no need for me to revisit those matters, so I will proceed directly to the legal issue.

The issue revolves around the provision in Welfare and Institutions Code 1 section 6604 that a person committed as a sexually violent predator (SVP) “shall not be kept in actual custody longer than two years unless a subsequent extended commitment is obtained from the court incident to the filing of a new petition for commitment under this article.”   Section 6604 does not specify what requirements, if any, must be met before the filing of “a new petition.”   It does, however, refer to the filing of a new petition “under this article.”   There is no dispute that “this article” is article 4, chapter 2, part 2 of division 6 of the Welfare and Institutions Code, including sections 6600 through 6609.3, commonly referred to as the SVPA.

The only section referring to prefiling requirements for a petition under the SVPA is section 6601.   That section prescribes a multi-step administrative process.   It does not distinguish between original petitions and new petitions filed at the conclusion of a two-year commitment.   The arguments of the parties raise two questions concerning the applicability of section 6601.  (1) To what extent, if at all, does it apply to a new petition under section 6604?  (2) If it applies, is it directory or mandatory?   The concurring and dissenting opinion authored by Presiding Justice Ardaiz (the concurring opinion) raises an additional question:  (3) If section 6601, subdivision (d) applies to a new petition and is mandatory, are two current evaluations required?

applicability of Section 6601

Subdivisions (a) and (b) of section 6601 provide for a reference for evaluation and screening by the Department of Corrections and the Board of Prison Terms when the subject is in custody under the jurisdiction of the Department of Corrections.   When the new petition for commitment was filed in this case, real party in interest Bruce Edward Riley was no longer in custody under the jurisdiction of the Department of Corrections.   Instead, he was committed to the Department of Mental Health (DMH).   The People suggest that because subdivisions (a) and (b) of section 6601 do not apply to a new petition for commitment under section 6604, none of the other requirements of section 6601 apply, including subdivision (d)'s requirement of concurrence by two evaluators.

The People argue that because section 6604 does not expressly require two evaluations as a prerequisite to filing a new petition for commitment, we should infer that the Legislature did not intend such a specific requirement.   But the opposite argument has greater force.   By referring to “this article,” the Legislature evidenced an intent that the provisions of section 6601, including the two evaluations requirement of subdivision (d), should apply to the extent possible.   The Legislature has shown that when it intends to relax the requirements precedent to a petition for recommitment in other civil commitment programs, it does so expressly.   For example, Penal Code section 2970 authorizes the filing of a petition for continued involuntary treatment of a mentally disordered offender upon receipt of a single written evaluation from specified officials, while the original decision to retain the prisoner for mental health treatment requires concurrence of two professionals under Penal Code section 2962.  (See also former § 6316.2 [authorizing prosecuting attorney to file petition for recommitment under former mentally disordered sex offenders law if Director of Mental Health has “good cause” to believe person meets requirements for extended commitment and submits “supporting evaluations and case file,” while an original commitment under that law required evaluations by at least two professionals].)   By not expressing some different procedure for the filing of a new petition pursuant to section 6604, the Legislature indicated its intention to require the same procedure that precedes the filing of an original petition, to the extent possible.  (Cf. In re Parker, supra, 60 Cal.App.4th at p. 1466, 71 Cal.Rptr.2d 167.)

The mere fact that some of the procedural steps in section 6601 are inapplicable to a new petition for commitment does not support a conclusion that none of the steps should be followed.   Section 6601 is the only section prescribing prefiling administrative requirements.   Subdivisions (c) through (i) can be followed before filing a new petition for commitment as well as they can be followed before filing an original petition, even though the person is no longer in the custody of the Department of Corrections.   Nothing in the statutory language or legislative history indicates an intent to eliminate all administrative steps precedent to filing a new petition for commitment.   Section 6604 requires a “new petition for commitment” and section 6601, subdivision (d) sets forth a petition for commitment prerequisite.   Thus, I conclude that section 6601, subsection (d) required two evaluations of Riley before a new petition could be filed.

The lead opinion apparently, although not expressly, holds that section 6601, subdivision (d) is inapplicable to a new petition for commitment under section 6604.   The rationale appears to be that subdivisions (c) through (g) of section 6601 are dependent on the inapplicable subdivisions (a) and (b) since each refers to the “person” described in subdivisions (a) and (b).  Under that analysis, no further evaluations are required to support a new petition.   Instead of following the logic of its holding, however, the lead opinion grasps at section 6601, subdivision (h) for the proposition that “current information on the committed person's mental condition” (lead opn. of Levy, J., p. 664) is required, and it concludes that a single current evaluation report satisfies that requirement.

I disagree with the lead opinion's conclusion on two levels.   First, I think it is illogical to hold that subdivisions (c) through (g) of section 6601 do not apply to a new petition, but that subdivision (h) does.   The latter contains the same reference to “the person” that the lead opinion cites as a ground for making the preceding subdivisions inapplicable.

Second, the lead opinion reads section 6601, subdivision (h) as if it stands alone, independent from the preceding subdivisions.   In doing so, it ignores the elaborate prepetition procedure the Legislature has constructed in those subdivisions.   Subdivision (c) requires the DMH to evaluate the subject in accordance with a standardized assessment protocol and lists several risk factors which must be considered in the evaluations.   Subdivision (d) requires the DMH director to designate two professionals to evaluate the subject, and to request a petition if both evaluators concur that the subject is an SVP.   Where only one of the two professionals designated by the DMH finds the person is an SVP, subdivision (e) provides that the DMH director “shall arrange for further examination of the person by two independent professionals selected in accordance with subdivision (g).”   Subdivision (f) provides if independent evaluations are conducted, a petition shall be filed only if both of the independent professionals concur that the person is an SVP.   Subdivision (g) specifies the qualifications of the independent professionals, one of which is that the professional “shall not be a state government employee.”

In pertinent part, section 6601, subdivision (h) provides:

“If the State Department of Mental Health determines that the person is a sexually violent predator as defined in this article, the Director of Mental Health shall forward a request for a petition to be filed for commitment under this article to the county designated in subdivision (i)․”

Given the step-by-step administrative progression the Legislature set forth in section 6601, I cannot agree that it intended subdivision (h) to operate as a separate, alternative, prepetition procedure.   Instead, I construe the language, “If the State Department of Mental Health determines that the person is a sexually violent predator,” as referring to the procedure described in subdivisions (e), (f), and (g);  i.e., a determination made only after evaluations by two independent professionals who agree the subject is an SVP.

This interpretation is bolstered by the fact that the remaining language in section 6601, subdivision (h) parallels language in subdivision (d).   That language directs the DMH to forward a request for petition to the appropriate county and to furnish copies of the evaluation reports and other supporting documents to the county's attorney.   The language does not appear in subdivisions (e), (f), or (g).   Although subdivision (f) provides that a petition shall be filed only if both independent evaluators agree, it does not expressly direct DMH to request a petition.   Subdivision (h) fills that void.

Divorcing subdivision (h) from the preceding subdivisions in section 6601, as the lead opinion apparently does, creates uncertainty in a statutory scheme in which the Legislature painstakingly attempted to provide certainty.   The lead opinion states that the DMH is free to make a determination that a person is an SVP based on “current information on the committed person's mental condition.”   Neither the statute nor the lead opinion describes this information.   The lead opinion, however, concludes a single new evaluation suffices.   If so, who may perform the evaluation?   What qualifications must the evaluator possess?   Is the evaluator required to follow a standardized assessment protocol?   None of these questions is answered in section 6601, subdivision (h) unless one refers back to the preceding subdivisions.   But the lead opinion concludes that none of those subdivisions is applicable.   And, of course, none permits the filing of a petition on the basis of a single evaluation under any circumstance.

The lead opinion's interpretation could lead to mischief.   For example, assume that as an SVP's original two-year commitment draws to a close, DMH designates two professionals to conduct current evaluations, and the evaluators disagree.   Can a new petition for commitment under section 6604 be filed based solely on the single evaluation because it constitutes “current information on the committed person's mental condition?” 2  If so, the contrary provisions in subdivisions (d), (e), and (f) of section 6601 are made superfluous in violation of the rule of statutory interpretation that requires us, if possible, to give effect and significance to every word and phrase of a statute.  (Garcia v. McCutchen (1997) 16 Cal.4th 469, 476, 66 Cal.Rptr.2d 319, 940 P.2d 906.)

The lead opinion's approach also raises questions as to whether a new petition for commitment, filed on the basis of only one current evaluation, can be buttressed by one or more other evaluations made after the petition is filed but before the probable cause hearing.   The Fresno County District Attorney attempted to do that in this case.   Although the new petition was filed on February 16, 1999, the probable cause hearing did not commence until October 26, 1999, nearly seven months after expiration of Riley's original two-year commitment term.   On September 17, 1999, the district attorney requested a second evaluation.   As a result, Dr. William R. Knowlton, a clinical psychologist and one of the coleaders of the Phase I treatment group of which Riley was a member, evaluated Riley.   In Dr. Knowlton's opinion, Riley does not meet the criteria as an SVP. At or about the same time,3 a third professional, Dr. Amy Phenix, also a clinical psychologist, made an evaluation report in which she found that Riley meets the criteria as an SVP.

At the probable cause hearing the district attorney sought to amend the petition by adding Dr. Phenix's report.   The court sustained an objection to the amendment and later dismissed the petition because of the failure to comply with section 6601, subdivision (d).   Because of its ruling, the trial court did not decide whether any postpetition evaluation reports could be received in evidence to support the petition.   My colleagues, although directing the trial court to conduct a probable cause hearing, have provided the court with no guidance on this question.

need For Current Evaluations

The concurring opinion disagrees with the lead opinion, and agrees with me, that section 6601, subdivision (d), requiring two evaluations for a new petition for commitment, is applicable.   Fashioning an argument which the People did not advance, however, the concurring opinion concludes the requirement was “accommodated” because the DMH “included in its evaluation the two prior evaluations that originally were used in filing the initial petition ․ [and] the subsequent probable cause proceeding and determination beyond a reasonable doubt that petitioner was a sexually violent predator in reaching the conclusion that he was currently a sexually violent predator.”   (Conc. opn. of Ardaiz, P.J., p. 667.)   I disagree with that conclusion as it is totally at odds with the spirit of the SVPA and renders the two evaluations requirement meaningless.

In every case in which a new petition for commitment is filed under section 6604, there will have been two earlier evaluations made pursuant to section 6601, a probable cause determination, and a determination beyond reasonable doubt that the person was an SVP when the proceedings were initiated.   If the existence of those previous evaluations and determinations satisfies section 6601 for the filing of a new petition for commitment, then nothing new or current need be submitted.   If the concurring opinion is suggesting that a single new evaluation suffices as long as it refers to the original ones, I see no significant difference between that position and the one taken in the lead opinion.

A dominant theme of the SVPA is that a person comes within its scope on the basis of his or her current mental condition.   In the SVPA's uncodified purpose clause, the Legislature declared that “[t]he continuing danger posed by [SVP's] and the continuing basis for their judicial commitment is a currently diagnosed mental disorder which predisposes them to engage in sexually violent criminal behavior.”  (Historical and Statutory Notes, 73D West's Ann. Welf. & Inst.Code (1998 ed.) foll. § 6600, p. 250, italics added.)

The emphasis on the person's current state is reflected in many of the SVPA's provisions.   For example, section 6600, subdivision (a) defines an SVP as, among other things, a person who “has” a particular diagnosed mental disorder.   Section 6601, subdivisions (d), (e), and (f) require two professionals to concur that the person “has” the necessary mental disorder before a petition may be filed.   Section 6605, subdivision (a) provides that after a person has been committed as an SVP, he or she shall have a current examination of his or her mental condition at least once a year, and is entitled to appointment of an expert and review of all records.   In addition, the person may seek a show cause hearing to determine whether his or her “condition has so changed that he or she would not be a danger to the health and safety of others if discharged.” (§ 6605, subd. (b).)  If cause is shown, the court shall set a hearing on the issue, and at the hearing the state carries the burden of proving beyond a reasonable doubt that the person's diagnosed mental disorder remains. (§ 6605, subds.(c), (d).)

At any time during the two-year commitment period, if the DMH has reason to believe that the person is no longer an SVP, the DMH must seek judicial review. (§ 6605, subd. (f).)  In addition, the DMH may recommend that the person be conditionally released whenever the director “determines that the person's diagnosed mental disorder has so changed that the person is not likely to commit acts of predatory sexual violence while under supervision and treatment in the community.” (§ 6607, subd. (a).)  Finally, the SVP may petition for conditional release after being confined for care for at least one year. (§ 6608.)

The Supreme Court has recognized that these various provisions “seek to ensure that any commitment ordered under section 6604 does not continue in the event the SVP's condition materially improves.”  (Hubbart v. Superior Court, supra, 19 Cal.4th at p. 1147, 81 Cal.Rptr.2d 492, 969 P.2d 584.)   In light of the clear legislative purpose, it is unreasonable to conclude the Legislature intended that the two evaluations requirement of section 6601, subdivision (d) could be satisfied by evaluations made at least two years before the current petition was filed.

The unreasonableness is demonstrated in this case.   Riley's two original evaluations were made on June 20, 1996, and July 6, 1996.   The new petition for commitment was filed on February 16, 1999, more than 30 months later.   The 1996 evaluation reports could offer no information as to Riley's mental condition in February 1999, or the likelihood that he “is likely to engage in acts of sexual violence.” (§ 6601, subd. (d), italics added.)   Most importantly, the old reports could not reflect the effects of the treatment afforded to Riley since 1997.   Section 6606 requires the DMH to provide committed SVP's treatment programming “based on a structured treatment protocol.” (§ 6606, subds.(a), (c).)  “The protocol shall also specify measures that will be used to assess treatment progress and changes with respect to the individual's risk of reoffense.” (§ 6606, subd. (c).)

I agree with the Sixth Appellate District's opinion that “[t]he evaluations performed at the initial commitment stage would not reflect the defendant's current mental condition [at the time of a new petition for commitment].”   (Butler v. Superior Court, supra, 78 Cal.App.4th at p. 1180, 93 Cal.Rptr.2d 468;  accord, Peters v. Superior Court, supra, 79 Cal.App.4th at p. 850, 94 Cal.Rptr.2d 350.)

The concurring opinion claims that requiring two current evaluations for a new petition for commitment elevates form over substance.   I disagree.   At issue are the procedural steps DMH must follow before seeking to subject a person to a new, two-year, involuntary commitment.   Obtaining current evaluations by two professionals who must agree that the person is an SVP is hardly a matter of form.

The concurring opinion also relies on the familiar rule of statutory construction that a literal interpretation is disfavored when it will “result in absurd consequences that the Legislature did not intend.”   Application of the rule, however, does not support the conclusion reached by either of my colleagues.   First, applying the literal language of section 6601, subdivision (d) does not result in absurd consequences.   There is no showing that obtaining two current evaluations before filing a new petition is impossible, difficult, or an unreasonable burden on DMH's resources.   In fact, when Dr. Knowlton was asked to make a postpetition evaluation and report, he was able to do so within two days.

Second, and of more importance, the assertion that the Legislature did not intend to require two new evaluations for a new petition begs the question.   Nothing in the statute evidences such an intent.  “In determining the Legislature's intent, a court looks first to the words of the statute.   [Citation.]  ‘[I]t is the language of the statute itself that has successfully braved the legislative gauntlet.’ ”  (People v. Snook (1997) 16 Cal.4th 1210, 1215, 69 Cal.Rptr.2d 615, 947 P.2d 808.)   If the Legislature intended to relax the prefiling requirements for a new petition under section 6604, it could have said so.   It did not.

In short, I believe both the lead and concurring opinions, instead of construing the SVPA, have impermissibly rewritten it to add a provision that a new petition for commitment under section 6604 may be filed on the basis of a single current evaluation.   I fully understand arguments made by the People, and apparently accepted by my colleagues, that because a petition under section 6604 deals with a person who has previously been found to be an SVP, the procedural requirements should be relaxed.   Those arguments, however, should be addressed to the Legislature, not to the courts.  “[C]ourts do not sit as councils of revision, empowered to rewrite legislation in accord with their own conceptions of prudent public policy.”  (United States v. Rutherford (1979) 442 U.S. 544, 555, 99 S.Ct. 2470, 61 L.Ed.2d 68.)   Legislative history indicates the details of the final version of the law were negotiated between various groups.  (Sen. Com. on Criminal Procedure, Rep. on Assem. Bill No. 3130 (1995-1996 Reg. Sess.) June 18, 1996.)   For all we know, the Legislature may have considered and rejected the arguments.

mandatory or Directory?

The People argue that, assuming section 6601, subdivision (d) applies to a new petition for commitment filed pursuant to section 6604, it is merely directory.   Thus, noncompliance with its provisions did not justify dismissing the petition before the probable cause hearing.   My colleagues do not reach this issue, apparently because it was mooted by their decision that the prepetition requirements were satisfied.   Because I disagree with that decision, I will address the People's argument.

The People rely on People v. McGee (1977) 19 Cal.3d 948, 962, 140 Cal.Rptr. 657, 568 P.2d 382,4 in which the Supreme Court quoted from its earlier opinion in Morris v. County of Marin (1977) 18 Cal.3d 901, 911, 136 Cal.Rptr. 251, 559 P.2d 606 as follows:  “ ‘When the object [of a particular statutory provision] is to subserve some public purpose, the provision may be held directory or mandatory as will best accomplish that purpose [citation]․’ ”   The People go on to argue that because the legislative intent of the SVPA is protection of the public, “the requirement that two evaluations be provided with the petition pursuant to section 6604 should be held to be directory rather than mandatory.”

The People's contention is overly simplistic and is not supported by the very case they cite.   In People v. McGee, supra, 19 Cal.3d 948, 140 Cal.Rptr. 657, 568 P.2d 382, the Supreme Court provided a comprehensive analysis a court should make when faced with deciding whether a particular statutory procedure is mandatory or directory.   The analysis involves two levels of inquiry.   The first level involves the “mandatory-permissive” dichotomy.  (Id. at p. 958, 140 Cal.Rptr. 657, 568 P.2d 382.)   In this context “ ‘the term “mandatory” refers to an obligatory [procedure] which a governmental entity is required to [follow] as opposed to a permissive [procedure] which a governmental entity may [follow] or not as it chooses.’ ”  (Id. at pp. 958-959, 140 Cal.Rptr. 657, 568 P.2d 382.)

In McGee the issue involved interpretation of a provision formerly appearing in section 11483 which incorporated language from other sections stating that “restitution shall be sought ․ prior to the bringing of a criminal action” against those who fraudulently obtain certain welfare benefits.   The Supreme Court concluded that statutory requirement was mandatory, rather than permissive.  (People v. McGee, supra, 19 Cal.3d at p. 961, 140 Cal.Rptr. 657, 568 P.2d 382.)   One of the reasons given by the court for its conclusion was that section 15, a general provision applicable to all sections of the code, stipulates that “ ‘shall’ is mandatory and ‘may’ is permissive.”   That reason applies as well to the statute before us.   Section 6601, subdivision (d) provides that “[p]ursuant to subdivision (c) the person shall be evaluated by two” professionals.  (Italics added.)

In addition, I think it is entirely unreasonable to suggest that the Legislature, having laid out a comprehensive, detailed, prepetition procedure, intended for the DMH to either follow or ignore the procedure as it sees fit.   I conclude that the DMH is obligated, not just permitted, to obtain two evaluations before requesting a petition under the SVPA.

The second level of inquiry described in McGee focuses on the consequences which flow from the failure to follow a prescribed procedure.   After discussing earlier decisions, the Supreme Court stated that “the pertinent question in the instant case is whether the statutory requirement at issue was intended to provide protection or benefit to those individuals accused of welfare fraud or was instead simply designed to serve some collateral, administrative purpose.”  (People v. McGee, supra, 19 Cal.3d at p. 963, 140 Cal.Rptr. 657, 568 P.2d 382.)   If the latter, the state's noncompliance with the procedure would not constitute a defense.   The court went on to conclude that “the statutory requirement at issue here was intended to provide a measure of protection to individuals suspected of welfare fraud.”  (Id. at p. 965, 140 Cal.Rptr. 657, 568 P.2d 382.)   The state's failure to comply with the requirement could be raised by the defendant as a bar to prosecution.  (People v. McGee, supra, at p. 966, 140 Cal.Rptr. 657, 568 P.2d 382.)

Applying the McGee analysis here, the question is whether the two evaluations requirement in section 6601, subdivision (d) was intended to benefit persons such as Riley or merely to serve some administrative purpose.   The People point to the overall legislative purpose behind the SVPA, which is public protection rather than further punishment of the individual, as supporting a conclusion that failure to comply with the two evaluations requirement should not justify dismissal.   While the People's description of the general SVPA purpose is correct (see Hubbart v. Superior Court, supra, 19 Cal.4th at p. 1144, 81 Cal.Rptr.2d 492, 969 P.2d 584), the issue under discussion concerns the specific legislative intent behind section 6601, subdivision (d).

The SVPA “affects a substantial private liberty interest.”  (People v. Superior Court (Howard ) (1999) 70 Cal.App.4th 136, 148, 82 Cal.Rptr.2d 481;  In re Parker, supra, 60 Cal.App.4th at p. 1463, 71 Cal.Rptr.2d 167.)   One cannot read the entire act without concluding that the Legislature was acutely sensitive to the liberty interests of persons who are subjected to the law's provisions.   This sensitivity is reflected in the many procedural provisions, both at the administrative and the judicial level.   In upholding the constitutionality of the SVP, our state's high court quoted from a United States Supreme Court decision which dealt with a similar Kansas law:  “ ‘The numerous procedural and evidentiary protections afforded here demonstrate that the Kansas Legislature has taken great care to confine only a narrow class of particularly dangerous individuals, and then only after meeting the strictest procedural standards․' ” (Hubbart v. Superior Court, supra, 19 Cal.4th at p. 1174, fn. 33, 81 Cal.Rptr.2d 492, 969 P.2d 584, quoting Kansas v. Hendricks (1997) 521 U.S. 346, 364-365, 117 S.Ct. 2072, 138 L.Ed.2d 501.)

The filing of a petition may be only the first step in the multi-step judicial process, but it still has consequences as to the individual's liberty interest.   The only time limit in the SVPA is that the petition be filed before expiration of the person's current commitment term.  (People v. Superior Court (Ramirez ) (1999) 70 Cal.App.4th 1384, 1391, 83 Cal.Rptr.2d 402.)   Thus, when the petition is filed shortly before the person would otherwise be released, he or she will necessarily continue to be confined pending a probable cause hearing and/or trial.   The extended period of confinement may be more than minimal.   For example, in this case Riley's original commitment term expired on April 1, 1999, but the probable cause hearing did not commence until October 26, 1999.  (See also id. at p. 1386, 83 Cal.Rptr.2d 402 [new petition filed on August 27, 1998;  original two-year commitment expired September 1, 1998;  trial set for November 23, 1998];  In re Parker, supra, 60 Cal.App.4th at pp. 1460-1461, 71 Cal.Rptr.2d 167 [petition filed September 2, 1997;  parole release date October 9, 1997;  probable cause hearing October 20, 1997].)

In section 6601, the Legislature rather clearly provided that no petition could be filed without adhering to the procedures set out there.   It is hard to imagine why the Legislature would prescribe such an elaborate procedure merely to further some state interest.   Instead, I think it is obvious the Legislature wished to protect individuals from the commencement of proceedings, and the extended period of confinement which may result therefrom, unless based on the opinions of at least two qualified professionals conducting evaluations based on a standardized assessment protocol.

I view the two evaluations requirement of section 6601, subdivision (d) as one of the protections afforded to persons subject to the SVPA.   It is therefore a mandatory provision which the state is strictly required to meet.   Because the state failed to do so here, the trial court correctly dismissed the petition.

I would deny the petition for writ of mandate.

FOOTNOTES

1.   All statutory references are to the Welfare and Institutions Code unless otherwise indicated.

2.   During oral argument, Riley's counsel informed this court that the State Department of Mental Health has adopted a statewide practice of providing only one new psychological evaluation to support a “new petition for commitment” pursuant to section 6604.

1.   All further references are to the Welfare and Institutions Code unless otherwise stated.

FN1. All further statutory references are to the Welfare and Institutions Code unless otherwise specified..  FN1. All further statutory references are to the Welfare and Institutions Code unless otherwise specified.

2.   The Second Appellate District answered this precise question in the negative.  (See Peters v. Superior Court, supra, 79 Cal.App.4th at p. 851, 94 Cal.Rptr.2d 350.)

3.   Dr. Knowlton's report is dated September 19, 1999, and Dr. Phenix's report is dated September 18, 1999.

4.   McGee was abrogated on other grounds by subsequent legislative action.  (See People v. Preston (1996) 43 Cal.App.4th 450, 50 Cal.Rptr.2d 778.)

LEVY, J.